Tewksbury Public Schools, DESE Hit With Lawsuit By Anti-Mandate Group

Last week residents Peter Carlino, Peter Foster, Erin Hudd, Danielle Newell and Chris and Amy Lutkevich, on behalf of their children, filed suit against the Department of Elementary and Secondary Education (DESE) and the Tewksbury Public School District seeking an injunction against enforcement of the Massachusetts mask mandate.

See the full text of the suit below.

The plaintiffs are members of a group called Tewksbury Against Mandates and are specifically challenging the Tewksbury School Committee’s adoption of the statewide DESE policy requiring students to wear face masks or coverings while in school.

They contend that “DESE and the District lacked the authority to pass these mandates; (2) even if DESE had the authority to pass the mandate, it exceeded its authority in doing so; (3) the mandates are preempted by the Massachusetts Department of Public Health’s comprehensive regulatory scheme concerning infectious diseases; and (4) the mandates violate parents’ right to due process and their natural rights under the Massachusetts Constitution because they violate their rights to make healthcare decisions for their children and otherwise direct the care and upbringing of their children.”The New Hampshire attorney behind the motion, Robert M. Fojo, has recently filed a flurry of similar suits in Massachusetts, Florida and New Hampshire.

The plaintiffs are asking that the DESE mask mandate be declared null and void and that they be awarded a sum to cover attorney’s fees and costs.

Foster told the Carnation that the group of parents who filed the complaint are part of a larger like-minded population within the community.

“This group of people are educated, measured and come from a place of reason and logic,” said Foster. “This group of parents, grandparents, children and supportive community members feel that these organizations have overstepped the powers and duties that have been granted to them. They also believe that the data and information, or lack there of, that is being used to take medical consent away from parents is fundamentally flawed and only being viewed as a singular problem. This type of misinformed, close-minded and fearful policy making must not continue.”

A local attorney told the Carnation that Prince v. Massachusetts, 321 U.S. 158, gives the government broad authority to regulate the treatment of children and override parental authority where doing so is in the interests of a child’s welfare. In addition, given that the attorney is based in New Hampshire, there is a question of his eligibility to file suit in Massachusetts.

The Department of Elementary and Secondary Education was established under MGL Section 1A, Chapter 69 and sits within the Commonwealth’s Executive Office of Education under the supervision of the Commissioner of Elementary and Secondary Education. In its first report on COVID-19 in Mass. schools, DESE reported 1,230 cases from Sept. 13 to Sept. 15 among about 920,000 students. Last week that number was up to 2,554.